The opinion of the court was delivered by: United States District Judge Jeffrey T. Miller

ORDER GRANTING DEFENDANTS' MOTION TO QUASH SERVICE Docket No. 106-07

I. BACKGROUND

In August of 2010, the court entered default judgment against Agropecuaria La Finca, S.P.R. de R.L. ("La Finca") and Jose Raul Aviles Geraldo. Included in that order was a permanent injunction restraining Defendant LA FINCA, its agents, subsidiaries, successors, assignees, principals, associates, employees, attorneys and persons acting in concert with it, from engaging in, committing, or performing, directly or indirectly, any or all of the following acts: transferring, transporting, assigning or selling any produce grown by LA FINCA and shipped to the United States to any party other than AVIARA for distribution in the United States.

Plaintiffs recently filed a motion claiming that the permanent injunction has been violated by Jose Jesus Gonzalez Gonzalez, individually and doing business as Gonimver Produce S.P.R. de R.L. ("Gonzalez"), Salvador Pelayo Lopez, individually and doing business as La Gravilla S.P.R. de R.L. ("Pelayo Lopez"), and DG Sales, Inc., doing business as The Growers Connection ("The Growers Connection" or "GC") (Gonzalez and Pelayo Lopez are referred to collectively as the "Farmers," and the Farmers and GC are collectively referred to as "Defendants"). According to the motion, the Farmers were two of the seven principals of La Finca. Plaintiffs allege that after the permanent injunction was issued, La Finca disbanded, but the Farmers continued to use the same land and buildings to grow and pack produce. Plaintiffs claim that the Farmers have violated the injunction by shipping tomatoes to GC rather than to Plaintiffs.

Defendants have specially appeared and have stipulated with Plaintiffs in open court that Defendants' papers may be deemed a motion to quash service because Plaintiffs did not personally serve them with process, instead serving Defendants' attorneys. For the reasons stated below, the motion is GRANTED.

II. LEGAL STANDARD AND DISCUSSION

Plaintiffs argue that Defendants' attorneys had implied authority to accept service of process. The argument relies on Plaintiffs' claims that before they were served, Defendants' attorneys had made clear that they were representing Defendants in this matter. In support, Plaintiffs discuss one case, In re Focus Media Inc., 387 F.3d 1077 (9th Cir. 2004), which held that in some situations, attorneys can have implied authority to accept service of process.

However, as Defendants pointed out at hearing, In re Focus Media requires a much stronger showing of implied authority than exists here. The court there examined three factors that indicated service had been impliedly authorized: (1) the party's attorney in that case "was extensively involved in the underlying bankruptcy proceeding"; (2) in the underlying proceeding, the attorney had been served with process as an agent without any objection, and (3) the party had submitted a declaration in a previous state court proceeding stating that the attorney was his general counsel and had "been consulted on a variety of legal matters and [had] been made privy to confidential financial, tax, and legal information." Id. at 1084. Further discussing the third point, the court noted that "an agent's authority to act cannot be established solely from the agent's actions." Id. Clarifying the importance of the existence of factors such as these, one district court recently noted that "the attorney-client relationship by itself is insufficient to convey authority to accept service." Kruska v. Perverted Justice Foundation, Inc. 2009 WL 4041941 at *2 (D. Ariz. 2009) (explaining that the "record must show that the attorney exercised authority beyond the attorney-client relationship, including the power to accept service").

Here, Plaintiffs have failed to demonstrate that Defendants and their attorneys have a relationship that extends beyond a typical attorney-client relationship, and there is no indication that Defendants have made any statements granting their attorneys authority to accept service of process.

Plaintiffs also seem to argue that service on the Farmers' attorney should be acceptable because it is "a method that is reasonably calculated to give notice." Fed. R. Civ. P. 4(f). However, that argument ignores the rest of Rule 4(f), which directs service of process to be completed through the Hague Convention. Thus, service through "a method that is reasonably calculated to give notice" is only acceptable if allowed by the Hague Convention.*fn1

III. CONCLUSION

Service of process on Defendants' attorneys was improper, and to the extent that Plaintiffs' brief asks the court to authorize service on Defendants' attorneys under Rule 4.1, that request is unsupported by case law authority and is denied.*fn2 In order to proceed, Plaintiffs must effect proper service on the Farmers and GC. The court recognizes Plaintiffs' frustration with being forced to serve parties it believes have acted in concert with parties to the original case, but allowing circumvention of proper service here would necessitate assuming the correctness of the facts alleged in Plaintiffs' motion for contempt. The court cannot do so. The motion to quash service is GRANTED.

IT IS SO ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.